Zynga Game Network, Inc. v. Williams et al

Filing 43

MOTION for Default Judgment as to DEFENDANTS JASON WILLIAMS, LUNA MARTINI AND WAN-WEN KUO; AND MEMORANDUM OF POINTS AND AUTHORITIES filed by Zynga Game Network, Inc.. Motion Hearing set for 6/24/2011 09:00 AM in Courtroom 3, 5th Floor, San Jose before Hon. Jeremy Fogel. (Attachments: # 1 Proposed Order, # 2 Affidavit)(Caplan, David) (Filed on 5/6/2011)

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Larry W. McFarland (Bar No. 129668)
E-Mail: [e-mail]
Dennis Wilson (Bar No. 155407)
E-Mail: [e-mail]
David K. Caplan (Bar No. 181174)
E-Mail: [e-mail]
Tara D. Rose (Bar No. 256079)
E-Mail: [e-mail]
KEATS McFARLAND & WILSON LLP
9720 Wilshire Boulevard
Penthouse Suite
Beverly Hills, California 90212
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Plaintiff
ZYNGA INC.

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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ZYNGA GAME NETWORK INC., a Delaware
Corporation,

CASE NO. CV-10:01022 JF (PSGx)

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Plaintiff,

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v.
JASON WILLIAMS, an individual, LUNA
MARTINI, an individual, WAN-WEN KUO, an
individual, and JOHN DOES 4-5 D/B/A MW
GROUP

[PROPOSED] DEFAULT JUDGMENT
AGAINST DEFENDANTS JASON
WILLIAMS, LUNA MARTINI AND WANWEN KUO

Defendants.

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CASE NO. CV-10:01022 JF (PSGx)

[PROPOSED] DEFAULT JUDGMENT

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Plaintiff Zynga Inc. (“Zynga”), having filed a First Amended Complaint in this action

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charging defendants Jason Williams, Luna Martini and Wan-Wen Kuo (“Defendants”) with Federal

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False Designation of Origin, violation of the Computer Fraud and Abuse Act, California Statutory

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Unauthorized Computer Access, California Statutory Unfair Competition, California Common Law

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Trademark Infringement and Unfair Competition, Breach of Contract, Intentional Interference with

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Contractual Relations and Trespass to Chattels, and the Court having found good cause, it is hereby

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ORDERED, ADJUDGED AND DECREED as between Zynga and Defendants:

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1.

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This Court has jurisdiction over the Parties to this action, and has jurisdiction over the

subject matter hereof pursuant to 15 U.S.C. §§ 1116, 1121 and 1125, and 28 U.S.C. §§ 1331,
1338(a) and (b), and 1367(a). Service was properly made against Defendants.
2.

Zynga owns the trademark and service mark MAFIA WARS (the “MAFIA WARS

Mark”) and has used the MAFIA WARS Mark in commerce since at least September 2008.
3.

The MAFIA WARS Mark has acquired distinctiveness, and by virtue of the extensive

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online sales and advertising under the mark MAFIA WARS, the MAFIA WARS mark has become

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well-known within social gaming circles as a source identifier for Zynga’s online game.

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4.

Zynga is the owner of United States Federal Trademark Application Serial No.

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77772110 for the mark MAFIA WARS in International Class 009 for downloadable computer game

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software for use on wireless devices and computers, and International Class 041 for entertainment

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services, namely, providing on-line computer games.

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5.

Zynga is the publisher of Mafia Wars (the “Game”), a computer game for use on

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wireless devices and computers that allows users to start a Mafia family with their friends and

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compete to become the most powerful family.

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6.

Zynga’s Terms of Service, which govern users’ play of the Game, prohibit players

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from selling “Virtual Currency” or “Virtual Goods” for real-world money or otherwise exchanging

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“Virtual Currency” or “Virtual Goods” for anything of value outside the Game. Zynga has not

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authorized any third party to sell or distribute the “Virtual Currency” or “Virtual Goods” required to

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play the Game.

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7.

Defendants assented to and are bound by the Terms of Service governing use of the
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CASE NO. CV-10:01022 JF (PSGx)

[PROPOSED] DEFAULT JUDGMENT

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Game, which are located at http://www.zynga.com/about/terms-of-service.php.
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Defendants have owned and operated websites through which they have unlawfully

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sold and offered for sale “Virtual Goods” for use in the Game, and have wrongfully used the MAFIA

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WARS Mark to advertise and sell these unauthorized “Virtual Goods”. Defendants have operated

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these websites from the following Internet domain names: MWBLACKMARKET.COM,

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MAFIAWARSDIRECT.COM and MWFEXPRESS.COM.

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9.

Defendants have willfully and maliciously violated Zynga’s intellectual property,

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contractual, and other rights, and Defendants are liable for each and every one of the claims asserted

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in Zynga’s First Amended Complaint.

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10.

Defendants and their affiliates, agents, servants, employees, representatives,

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successors, assigns, and any person, corporation or other entity acting under Defendants’ direction or

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control, or in active concert or participation with Defendants, are immediately and permanently

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enjoined throughout the world from:

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a.

Directly or indirectly using the MAFIA WARS trademark and any other mark,

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symbol, or logo that is a reproduction, counterfeit, copy, or colorable imitation of or that is

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confusingly similar to, or that is identical with, or substantially indistinguishable from, the MAFIA

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WARS mark on or in connection with any goods or services;

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b.

Infringing any of Zynga’s intellectual property rights in any manner, including

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but not limited to the MAFIA WARS Mark, any copyrights owned by Zynga, or any other rights

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owned by Zynga related to the Game;

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c.

Engaging in any conduct that tends falsely to represent that, or is likely to

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confuse, mislead or deceive purchasers, Defendants’ customers and/or members of the public to

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believe that, the actions of Defendants are connected with Zynga, are sponsored, approved, or

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licensed by Zynga, or are in any way connected or affiliated with Zynga;

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d.

Affixing, applying, annexing, or using in connection with the manufacture,

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distribution, advertising, sale, and/or offering for sale or other use of any goods or services, a false

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description or representation, including words or other symbols, tending to falsely describe or

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represent such goods as being those of, or authorized by, Zynga;
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CASE NO. CV-10:01022 JF (PSGx)

[PROPOSED] DEFAULT JUDGMENT

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e.

Registering any Internet domain name that includes the MAFIA WARS Mark,

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or any variations or misspellings thereof, whether alone or in combination with any other term(s) or

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character(s);

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f.

Accessing, directly or indirectly, any computer server or computer system

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owned, leased or operated by Zynga for any reason whatsoever, including without limitation any

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server or computer that provides access to the Game, or to any other game or application published

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by Zynga;

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g.

Advertising, purchasing, selling, trading, exchanging, profiting from,

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accepting or processing payments for, or facilitating or participating in any way in the advertisement,

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purchase, sale, trade, or exchange of “Virtual Goods” for use in the Game or any virtual item used in

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any Zynga game or application;

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h.

Otherwise competing unfairly with Zynga in any manner; and

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i.

Effecting assignments or transfers, forming new entities or associations or

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utilizing any other device for the purpose of circumventing or otherwise avoiding the prohibitions set

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forth in subparagraphs (a)-(h) above.

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Defendants are hereby ORDERED to account for and to disgorge to Zynga all profits

from their sale of “Virtual Goods” for use in the Game.

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12.

The Court finds that this is an exceptional case warranting an award of attorneys’ fees

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and costs, and will consider a motion for an award of attorneys’ fees and a bill of costs submitted by

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Plaintiff pursuant to Federal Rule of Civil Procedure 54(d) and Civil Local Rule 54.

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13.

This Court retains jurisdiction of this matter for the purposes of making any further

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orders necessary or proper for the enforcement of this Judgment and the punishment of any

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violations thereof.

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14.

This Judgment shall be deemed to have been served upon Defendants at the time of

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its execution by the Court.

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//

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//

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CASE NO. CV-10:01022 JF (PSGx)

[PROPOSED] DEFAULT JUDGMENT

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15.

The Court expressly determines that there is no just reason for delay in entering this

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Judgment, and pursuant to Rule 54(a) of the Federal Rules of Civil Procedure, the Court directs entry

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of judgment against Defendants.

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Dated ____________________

___________________________
The Honorable Jeremy Fogel
United States District Court Judge

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CASE NO. CV-10:01022 JF (PSGx)

[PROPOSED] DEFAULT JUDGMENT